Part 2 of WIOA Comments

Yes the writers acknowledge that there is a group of individuals who because of the “severity of the …….. is ineligible for VR services”. If they are ineligible then what are they eligible for??

Although the term “extended evaluation” was not referenced in the Act, this is the term used in current regulation to describe the process by which the DSUs assess an individual's ability to benefit from VR services due to the severity of disability, when the individual, under limited circumstances, is unable to participate in trial work experiences.

Current Regulations: Current § 361.42(f) permits, in limited circumstances, the provision of extended evaluations to individuals with disabilities who cannot take advantage of trial work experiences, or for whom trial work experiences have been exhausted.

Current § 361.41(b)(1)(ii) permits the exploration of an individual's abilities, capabilities, and capacity to perform in work situations in accordance with § 361.42(e) or, if appropriate, an extended evaluation in accordance with § 361.42(f).

Proposed Regulations: We propose to remove paragraph (f) from current § 361.42 and redesignate (g) as (f).

Proposed § 361.41(b)(1)(ii) would remove reference to extended evaluation and only permit an exploration of the individual's abilities, capabilities, and capacity to perform in work situations carried out in accordance with current § 361.42(e).

Reasons: These changes are necessary to implement the amendments to section 102(a)(2)(B) of the Act made by WIOA. The proposed changes also would ensure that before a DSU make an ineligibility determination, it must conduct a full assessment of the capacity of the applicant to perform in realistic work settings, without the exception of extended evaluations.

Development of the Individualized Plan for Employment (§ 361.45)Back to Top

Timeframe for Completing the Individualized Plan for Employment

Statute: Section 102(b)(3)(F) of the Act, as amended by WIOA, mandates that the individualized plan for employment be developed as soon as possible but no later than 90 days after the date of determination of eligibility,

and what of the ineligible ones?? WOIA was clear about what should happen there but still NO MENTION

unless the DSU and the eligible individual agree to an extension of that timeframe.

Current Regulations: Current § 361.45(e) requires the DSU to establish and implement standards for the prompt development of individualized plans for employment for eligible individuals; however, the 90-day timeframe is not included because this is a new statutory requirement.

Proposed Regulations: We propose to amend current § 361.45(e) to require that the DSU develop the individualized plan for employment for each eligible individual as soon as possible, but no later than 90 days following determination of eligibility, unless the DSU and the individual agree to a specific extension of that timeframe.

Reasons: This change is necessary to implement the statutory requirement made by WIOA that VR agencies develop the individualized plan for employment within 90 days following determination of eligibility. The intent is to move all eligible individuals through the VR process with minimal delay in order to efficiently and effectively serve these individuals, resulting in the achievement of employment outcomes in competitive integrated employment. While the majority of DSUs have already adopted the 90-day timeframe, some DSUs have adopted extended timeframes that impede the efficient and effective movement of individuals through the VR process, therefore, resulting in the delay of services, and ultimately delaying the achievement of employment outcomes. Additionally, some DSUs have established interim steps or plans prior to the development of the individualized plan for employment or have adopted longer timeframes for transition-age youth or other specific populations. The establishment of a 90-day timeframe by WIOA ensures consistency across the VR program nationally and sets the expectation that all eligible individuals receive timely services through an effective and efficient VR program with an outcome of improved VR agency performance and resulting in employment outcomes for individuals with disabilities.

Options for Developing the Individualized Plan for Employment

Statute: WIOA amends section 102(b)(1)(A) of the Act by clarifying that the DSU must provide eligible individuals with information regarding the availability of assistance in developing all or part of the individualized plan for employment from disability advocacy organizations. In addition, WIOA amends section 102(b) to require a DSU to provide to eligible individuals entitled to Social Security benefits under titles II or XVI of the Social Security Act, general information on additional supports, such as assistance with benefits planning.

Current Regulations: Current § 361.45(c)(1) requires that the DSU provide eligible individuals information regarding the options for developing the individualized plan for employment, but does not reference disability advocacy organizations since this is a new statutory requirement. Current § 361.45(c)(2) requires the DSU to provide additional information to eligible individuals relevant to the development of the individualized plan for employment, but does not mention benefits planning or other information specific to Social Security beneficiaries with disabilities since this is a new statutory requirement.

Proposed Regulations: We propose to amend current § 361.45(c)(1) by requiring a DSU to provide eligible individuals information about the option of requesting assistance from a disability advocacy organization when developing the individualized plan for employment. We also propose to amend current § 361.45(c)(2) by adding a new paragraph (v) that would require a DSU to provide eligible individuals entitled to Social Security benefits under titles II or XVI of the Social Security Act information on assistance and supports available to individuals desiring to enter the workforce, including benefits planning.

Reasons: The proposed changes are necessary to implement the amendments to section 102(b) of the Act made by WIOA. The inclusion of disability advocacy groups as a specific source of assistance, as appropriate, for eligible individuals in the development of the individualized plan for employment supports, and acknowledges the important role that these groups may play in mentoring an eligible individual through the VR process and in designing the plan of services that will successfully lead to an employment outcome. In coordination with the expertise of the qualified rehabilitation counselor, the experience of advocacy groups may lend a perspective and understanding of the disability-related needs, responsibilities, and services that are required to achieve the individual's employment goal. The inclusion of advocacy groups as a resource also recognizes and emphasizes the importance of self-determination, empowerment, and self-advocacy as cornerstones in rehabilitation.

By requiring that a DSU provide eligible individuals entitled to Social Security benefits under titles II or XVI of the Social Security Act with information on benefits planning, we intend that the individuals understand the implications of employment for continued receipt of their benefits so that they can make a fully informed choice of an employment goal.

Content of the Individualized Plan for Employment (§ 361.46)

Statute: WIOA amends section 102(b)(4) of the Act to require that the description of the specific employment goal chosen by the eligible individual, required as a mandatory component of the individualized plan for employment, be consistent with the general goal of competitive integrated employment.

Here we go with the MANTRA again. Choice Hummmmm

Current Regulations: Current § 361.46(a)(1) establishes the content requirements for the individualized plan for employment and requires that the plan include a specific employment goal based upon the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the eligible individual. The regulation does not contain the new statutory requirement.

Proposed Regulations: We propose to amend current § 361.46(a)(1) to require that the vocational goal selected by the individual in accordance with this section be consistent with the general goal of competitive integrated employment.

Reasons: The proposed revision to current § 361.46(a)(1) is necessary to implement the statutory requirements under WIOA, and is consistent with the purpose of the VR program, which is to assist individuals with disabilities, including those with significant disabilities, to prepare for and engage in competitive integrated employment.

The Act, as amended by WIOA, places heightened emphasis on the provision of services to students and youth with disabilities to ensure that they have meaningful opportunities to receive the training and other services they need to achieve employment outcomes in competitive integrated employment. To that end, the Act expands not only the population of students with disabilities who may receive services but also the kinds of services that the VR agencies may provide to youth and students with disabilities who are transitioning from secondary school to postsecondary education and employment.

Most notably, section 110(d) of the Act, as amended by WIOA, requires States to reserve 15 percent of their VR allotment to provide pre-employment transition services to students with disabilities who are eligible or potentially eligible for VR services. Section 113 of the Act, as added by WIOA, outlines the services that must be provided with these reserved funds. These services are designed to be an early start at job exploration.

With the addition of these pre-employment transition services, and expansion of services to youth, the VR program can be characterized as providing a continuum of VR services, especially for students and youth with disabilities. Specifically, it can provide pre-employment transition services to any student with a disability who needs these services, regardless of whether the student has applied for or been determined eligible for VR services. In addition, section 103(b) of the Act permits the VR agency to provide transition services to groups of youth with disabilities, regardless of whether they have applied for or been determined eligible for services. If either a student or youth with a disability requires more intensive services, he or she would apply for VR services. Once determined eligible, an individualized plan for employment would be developed, which would outline the specific services that he or she may need in order to achieve an employment outcome. In sum, the VR program provides a range of services, from most basic to the most individualized and intensive service, thereby meeting the evolving needs of a student or a youth with a disability who is transitioning from school to post-school life.

This portion of the NPRM will describe the key regulatory changes we propose to implement statutory amendments related to transition services. The major substantive changes relate to certain key definitions and the provision of pre-employment transition services and transition services to groups of youth with disabilities. Throughout this section of the NPRM, we will provide additional guidance for those areas that we expect will generate significant comments. The proposed changes are presented by relevant section of the regulations.

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Cooperation and Coordination With Other Entities (§ 361.24)

Statute: Section 101(a)(11) of the Act makes several changes that highlight the importance of transition and other matters affecting students and youth with disabilities with regard to the coordination of services between the VR program and other non-educational programs.

Current Regulations: Current regulations in § 361.24 address only the cooperation and coordination between the State VR agency and Federal, State and local agencies that are not carrying out activities through the workforce development system. Current regulations do not address the coordination that must occur with the section 121 projects in a State, if applicable, with regard to the provision of pre-employment transition services or non-educational agencies serving out-of-school youth because these are new statutory requirements.

Proposed Regulations: Proposed § 361.24(a) would incorporate non-educational agencies serving out-of-school youth as another entity with which the VR agency must coordinate.

We also propose to amend current § 361.24(c) and (d), which govern coordination between the DSUs and employers and section 121 projects, respectively, to include transition services among the matters that must be included in coordination efforts.

Reasons: These changes are necessary to implement the amendments to the Act made by WIOA, all of which are designed to improve relationships and coordination between the VR agencies, employers, and all other agencies (e.g.,workforce development, child welfare and juvenile justice agencies) serving individuals with disabilities,

especially youth with disabilities, to ensure they have meaningful opportunities to achieve employment outcomes in competitive integrated employment.

Yet another example of makes little difference of the disability they WILL participate in competitive employment. Still no mention of the specific mention in the law dealing with those individuals who will not be successful in “competitive integrated employment”.

While DSUs have been required to coordinate with American Indian Vocational Rehabilitation Services projects in the State, if any, the coordination now must also include pre-employment transition services.

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Pre-Employment Transition Services

Statute: WIOA amends the Act by including a new section 113 that requires VR agencies to coordinate with local educational agencies in providing, or arranging for the provision of, pre-employment transition services to students with disabilities who are eligible or potentially eligible for VR services and in need of such services.

And again what of the student who ARE NOT ELIGIBLE????

Section 110(d) requires States to reserve 15 percent of their VR allotment to provide these services.

Current Regulations: None.

Proposed Regulations: We propose to add regulations implementing the provision of pre-employment transition services in a new paragraph in proposed § 361.48(a). The current regulations will be moved to a new paragraph (b) in § 361.48.

Proposed § 361.48(a)(1) would permit pre-employment transition services to be provided to all students with disabilities regardless of whether they have applied for VR services and would clarify that similar transition services are available to youth with disabilities under proposed § 361.48(b) when specified in an individualized plan for employment.

Proposed § 361.48(a)(2) would specify the required pre-employment transition services that are provided directly to students with disabilities.

Proposed § 361.48(a)(3) would describe the authorized activities that the State may provide, if sufficient funds are available, to improve the transition of students with disabilities from school to postsecondary education or an employment outcome.

Proposed § 361.48(a)(4) would describe the responsibilities for pre-employment transition coordination to be carried out by VR agencies.

Finally, proposed § 361.48(a)(5) would support DSUs in providing pre-employment transition services, consulting with other Federal agencies, and identifying best practices of the States for the provision of transition services to students with a variety of disabilities.

Reasons: The proposed regulations in § 361.48(a) would implement the requirements of section 113 of the Act, which were added by WIOA. This new section presents an innovative approach to providing pre-employment transition services to students with disabilities.

The services required by this section are those that would be most beneficial to an individual in the early stages of employment exploration. These services are designed to provide job exploration and other services, such as counseling and self-advocacy training, in the early stages of the transition process. To that end, we believe Congress intended these services be provided to the broadest population of students with disabilities to ensure that as many students with disabilities as possible are given the opportunity to receive the services necessary in order to achieve an employment outcome. Therefore, the proposed regulation clarifies that pre-employment transition services would be available to all students with disabilities. However, it is important to note that a student with a disability in this instance does not mean an individual with a disability in postsecondary education. We believe this interpretation is consistent with the statutory language “all students with disabilities who are eligible or potentially eligible” for VR services and intent, as well as the definition of a “student with a disability.” As an individual with a disability, every student with a disability satisfies at least one of the eligibility criteria for VR services in current § 361.42(a)(1).

In so doing, we would ensure that the broadest possible group of students with disabilities is able to receive the services they need to better identify and prepare for post-school activities, including postsecondary education and competitive integrated employment. We do not believe that a student with a disability would have to apply for, or be determined eligible for, VR services prior to receiving pre-employment transition services under proposed § 361.48(a). However, if the student does apply for VR services, he or she would be subject to all relevant requirements for eligibility and order of selection, as applicable, for purposes of receiving other VR services.

It is important to point out, in this context, that the definition in proposed § 361.5(c)(51) of a “student with a disability,” for purposes of the VR program, is broader than the definition used under IDEA. For that reason, the VR agency may provide pre-employment transition services under this section to a broader group of students than could receive such services under IDEA since VR agencies may provide these services to students eligible for or receiving section 504 services, not all of whom may be eligible for or receiving special education or related services under IDEA.

We are particularly interested in receiving comments and alternative suggestions about the interpretation of “potentially eligible” as used in section 113(a) of the Act to mean all students with disabilities as defined under proposed § 361.5(c)(51).

In providing pre-employment transition services, a DSU may consider providing these services to students with disabilities in group settings or on an individual basis. When provided in group settings, these services are general in nature and are not typically customized to an individual student's disability-related or vocational needs. For example, job exploration counseling provided in group settings may include the presentation of general local labor market composition and information, administration of vocational interest inventories, and instruction regarding self-advocacy and self-determination. On the other hand, job exploration counseling provided on an individual basis might include discussion of the student's vocational interest inventory results and discussion of local labor market information that applies to those interests.

The manner in which pre-employment transition services are delivered (e.g.,either in a group setting or on an individual basis) will most likely depend on the amount of information the DSU has available regarding the student with a disability at the time services are provided. As a student progresses through the VR process by applying, and being determined eligible, for VR services, the DSU would obtain the information necessary to provide individually tailored services that address the student's particular disability-related and vocational needs. This aspect of pre-employment transition services, the fact that they can be either generalized or individualized, further highlights the continuum of services available under the VR program.

We want to make clear that if a student with a disability requires services that are beyond the limited scope of pre-employment transition services, the student would have to apply for and be determined eligible for VR services and develop an individualized plan for employment for the receipt of those services as would be true for any other applicant. To that end, we encourage DSUs to work with the local educational agencies and State educational agencies to develop a process whereby individuals expressing interest in VR services are able to access the program and apply for services in a timely manner. VR agencies are encouraged to develop a referral process that is simple and engaging, especially for students with disabilities and their families who could become discouraged or disinterested in VR services by needlessly complex and prolonged procedures. An individual may initiate the application process by requesting individualized pre-employment transition services and other VR services. Current § 361.41(b)(2) permits a student or the student's representative, as appropriate, to apply for VR services through a variety of means, including a simple request for VR services, such as submitting a form consenting to the provision of VR services or even a telephone call, so long as the request contains the limited demographic and other information necessary to begin an assessment for the determination of eligibility and the student is available to participate in the assessment.

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Semi-Annual Review of Individuals in Extended Employment and Other Employment Under Special Certificate Provisions of the Fair Labor Standards Act (§ 361.55)

Statute: Section 101(a)(14) of the Act, as amended by WIOA, increases the frequency of reviews that the DSUs must conduct when individuals with disabilities, who have been served by the VR program, obtain subminimum wage employment or extended employment.

Here we have again a focus on the subminimum wage and limiting it as much as possible.

Current Regulations: Current § 361.55 requires the DSU to conduct an annual review and re-evaluation annually for the first two years after an individual obtains subminimum wage employment or extended employment.

Proposed Regulations: We propose to amend § 361.55 to incorporate the new statutory requirement that these reviews be conducted semi-annually for the first two years of the individual's employment and annually thereafter. We also propose to make other technical and conforming changes throughout.

This sounds reasonable BUT it will be meaningless if all the opportunities to work in the Sheltered Workshops HAVE BEEN ELIMINATED as this document CLEARLY STATES!!!!

Reasons: The proposed changes are necessary to implement new statutory requirements and ensure individuals with disabilities do not languish in subminimum wage employment or extended employment. Prior to the passage of WIOA, DSUs conducted these reviews annually for two years. With the amendments made by WIOA, DSUs must conduct these reviews twice a year for two years and then annually thereafter for as long as the individual remains employed at the subminimum wage level or in extended employment. These changes are consistent with the heightened emphasis throughout WIOA that individuals with disabilities, including those with the most significant disabilities, be given every opportunity to achieve competitive integrated employment.

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Competitive Integrated Employment(§ 363.1)

Statute: Section 7(38) of the Act, as amended by WIOA, revises the definition of “supported employment” to mean, in pertinent part, employment with supports in competitive integrated employment or, if not in competitive integrated employment, employment in an integrated setting in which the individual is working toward competitive integrated employment on a short-term basis, not to exceed six months. Other key relevant statutory provisions include section 7(5), which defines competitive integrated employment; section 602, which makes clear the purpose of the Supported Employment program is to enable individuals with the most significant disabilities, including youth with the most significant disabilities, to achieve supported employment in competitive integrated employment; and section 604, which authorizes the services to be provided under the Supported Employment program to enable individuals to achieve supported employment in competitive integrated employment. Title VI contains references to this requirement throughout.

Current Regulations: Current § 363.1 sets out the purpose of the Supported Employment program, which is to assist States in developing and implementing collaborative programs with entities to provide supported employment services for individuals with the most severe disabilities who require such services to enter or retain competitive employment. Current regulations do not reference competitive integrated employment or working towards competitive integrated employment since these are new statutory requirements.

Proposed Regulations: We propose to amend current § 363.1 to reflect the revised statutory definition of “supported employment,” namely that the employment be in competitive integrated employment or, if it is not, that the employment be in an integrated setting in which the individual with a most significant disability is working toward competitive integrated employment on a short-term basis.

As proposed, the regulations would make clear that the purpose of the Supported Employment program is to enable individuals with the most significant disabilities, with on-going supports, to achieve competitive integrated employment (i.e., employment in an integrated setting that is compensated at or above the minimum wage).

The proposed definition of “supported employment” would take into account that under some circumstances an individual's employment, which must always be in an integrated setting, may not meet all of the criteria for competitive integrated employment initially. In those circumstances, an individual with a most significant disability would be considered to have achieved an employment outcome of supported employment if he or she is working in an integrated setting, on a short-term basis, toward competitive integrated employment. In the proposed definition, we would interpret “short-term basis” in this context to mean within six months of the individual entering supported employment.

We also propose to amend current § 363.50(b)(3) and (b)(4) to state that the collaborative agreements developed with other relevant entities for providing supported employment services and extended services may include efforts to increase opportunities for competitive integrated employment for individuals with the most significant disabilities, including youth with the most significant disabilities.

Finally, we propose to amend the balance of current § 363.50 to reflect in the States' required collaborative agreements the new scope and purpose of supported employment, as well as the new time limits for providing services that are discussed in detail under the sections “Services to Youth with the Most Significant Disabilities” and “Extension of Time for the Provision of Supported Employment Services.”

Reasons: The proposed revisions are necessary to implement in part 363 the statutory changes made by WIOA. We believe these proposed changes are consistent with the purpose of the Supported Employment program, as expressed throughout title VI of the Act. The proposed changes are also consistent with proposed changes to part 361, which governs the vocational rehabilitation (VR) program, since the supported employment program is supplemental to that program. In particular, we propose to establish a specific time frame—e.g., six months—for “short term basis” in the context of “supported employment,” because we believe it is necessary to limit the time allowed for individuals to work in non-competitive employment in order to be consistent with the clear intention of the Act, as amended by WIOA, which places heightened emphasis on competitive integrated employment throughout.

Services to Youth With the Most Significant Disabilities(§§ 363.6 and 363.54)

Statute: Section 603(d) of the Act, as amended by WIOA, requires each State to reserve and use 50 percent of its allotment under the Supported Employment program to provide supported employment services, including extended services, to youth with the most significant disabilities.

Yet another HUMMMMMM “Services to youth with the most significant disabilities” DVR has eligibility criteria and YET??? The “youth with the ……..” are not even in school and here they are receiving services??? This needs to be brought INTO REALITY with appropriate language.

Other relevant statutory provisions are found in section 602, which highlights services to youth with the most significant disabilities in the purpose section of title VI; section 604, which authorizes services specifically for youth with the most significant disabilities; section 605, which identifies youth with the most significant disabilities as eligible for supported employment services; and section 606, which establishes certain State plan requirements specific for services to youth with the most significant disabilities.

Current Regulations: None.

Proposed Regulations: We propose to amend multiple sections in part 363 to incorporate these new requirements for providing supported employment services, including extended services, to youth with the most significant disabilities.

We propose to amend current § 363.1 to state that a purpose of the Supported Employment program is to provide individualized supported employment services, including extended services in an integrated setting, to youth with the most significant disabilities in order to assist them in achieving supported employment in competitive integrated employment.

We propose to amend current § 363.3 to clarify that youth with the most significant disabilities are eligible to receive supported employment services. It is important to note that youth have always been eligible to receive supported employment services; however, amendments made by WIOA emphasize this population in the context of the Supported Employment program.

In proposed § 363.4(a) and (b), we would implement new statutory provisions permitting the expenditure of supported employment program funds, reserved for the provision of supported employment services to youth with the most significant disabilities on extended services to youth with the most significant disabilities for up to four years following the transition from support from the designated State unit (DSU). We propose to amend current § 363.4(c) to clarify that nothing in this part is to be construed as prohibiting the VR program from providing extended services to youth with the most significant disabilities with funds allotted under part 361.

In proposed § 363.4(d), we would set out the statutory requirement that a State must coordinate its supported employment services with its VR services provided under part 361 in order to avoid duplication.

We propose to amend current § 363.11 to incorporate supported employment services, including extended services, for youth with the most significant disabilities into the existing requirements for the VR services portion of the Unified or Combined State Plan supplement.

We propose a new § 363.22, which would implement the new statutory requirement that a State must reserve and use half of its allotment under the supported employment program for the provision of supported employment services, including extended services, to youth with the most significant disabilities.

We propose changes throughout part 363 to conform to new statutory nomenclature, such as referring to “the vocational rehabilitation services portion of the Unified or Combined State Plans” in §§ 363.10 and 363.11, instead of just “the State plan,” and “the most significant disabilities” instead of “severe disabilities.”

Reasons: The proposed revisions are necessary to implement in part 363 statutory changes made by WIOA. The proposed changes are also consistent with proposed changes to part 361, which governs the VR program, since the Supported Employment program is supplemental to that program. Specifically, the proposed changes are consistent with the heightened emphasis throughout the Act, as amended by WIOA on the provision of services to youth with disabilities, especially those with the most significant disabilities, to ensure they receive the services and supports necessary to achieve competitive integrated employment. Accordingly, the proposed changes would implement the statutory requirement that States must reserve half of their supported employment allotment for the provision of supported employment services, including extended services, to youth with the most significant disabilities. This new statutory requirement reflects the fact that this particular population may need more intensive services for a longer period of time in order to achieve competitive integrated employment. It is important to note that, prior to the passage of WIOA, States were not permitted to use supported employment and/or VR program funds to provide extended services under any circumstance. States still are prohibited from providing extended services to individuals who are not youth with the most significant disabilities.

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Limitation on Use of Subminimum Wages (Proposed 34 Part 397)Back to Top

Our discussion of part 397 is presented by subject in the order in which relevant sections appear in this part.

Purpose and the Department's Jurisdiction

Statute: Section 511 of the Act, as added by WIOA, imposes limitations on employers who hold special wage certificates under the Fair Labor Standards Act (FLSA) that must be satisfied before the employers may hire youth with disabilities at subminimum wage or continue to employ individuals with disabilities of any age at subminimum wage. Section 511 of the Act also establishes the roles and responsibilities of the designated State units (DSU) for the vocational rehabilitation (VR) program and State and local educational agencies, in assisting individuals with disabilities, including youth with disabilities, who are considering employment, or who are already employed, at a subminimum wage, to maximize opportunities to achieve competitive integrated employment through services provided by VR and the local educational agencies.

Is this the reference to the other work CHOICES???

Current Regulations: None.

Proposed Regulations: Proposed § 397.1 establishes the purpose of the regulations in this part, which is to set forth requirements the DSUs and State and local educational agencies must satisfy to ensure that individuals with disabilities, especially youth with disabilities, have a meaningful opportunity to prepare for, obtain, maintain, advance in, or regain competitive integrated employment, including supported or customized employment.

This proposed section also states that these regulations should be read in concert with: Part 300, which implements requirements under part B of the Individuals with Disabilities Education Act; part 361, which implements requirements for the VR program; and part 363, which implements the State Supported Employment Services program. We believe this clarification is necessary to ensure all stakeholders understand that nothing in this part is to be construed as altering any requirement under parts 300, 361, or 363.

What does mean exactly??? SIMPLE LANGUAGE and they bury and put all comments under the control without being specific of parts 300 361 and 363!!!!!!!!!!!!! Yes where is the language they speak of???

Reasons: These proposed regulations are necessary to ensure stakeholders understand the purpose of section 511 of the Act, as added by WIOA, and the Department's authority and jurisdiction under this section, as well as the inter-relationship of these requirements with those under the Individuals with Disabilities Education Act and the VR program and Supported Employment program.

Coordinated Documentation Process

Statute: Section 511(d) of the Act, as added by WIOA, requires the DSU and the State educational agency to develop a coordinated process, or use an existing process, for providing youth with disabilities documentation demonstrating completion of the various actions required by section 511 of the Act. Other relevant statutory provisions include section 511(a) of the Act, regarding the actions that a youth must complete prior to beginning subminimum wage employment, and section 511(c) of the Act, regarding the actions that individuals with disabilities of any age must complete in order to continue employment at subminimum wage.

Here it is so it seems

Current Regulations: None.

Proposed Regulations: Proposed § 397.10 would require the DSU, in consultation with the State educational agency, to develop a process that ensures individuals with disabilities, including youth with disabilities, receive documentation demonstrating completion of the various activities required by section 511 of the Act, such as, to name a few, the receipt of transition services by eligible children with disabilities under the Individuals with Disabilities Education Act and pre-employment transition services under section 113 of the Act, as appropriate.

Proposed §§ 397.20 and 397.30 would establish the documentation that the DSUs and local educational agencies, as appropriate, must provide

(TO WHOM MUST IT BE PROVIDED)

to demonstrate completion of the various activities, required by section 511(a)(2) of the Act, by a youth with a disability. These would include completing pre-employment transition services under proposed § 361.48(a) and the determination of eligibility or ineligibility for VR services under proposed § 361.42 and § 361.43.

Proposed § 397.40 would establish the documentation that the DSUs must provide to individuals with disabilities of any age who are employed at a subminimum wage upon the completion of certain information and career counseling-related services, as required by section 511(c) of the Act.

Reasons: These proposed regulations are necessary to implement new statutory requirements. In so doing, these proposed regulations would inform DSUs, State, and local educational agencies of their specific responsibilities related to documentation required under section 511 of the Act and would ensure that individuals with disabilities have sufficient information available to make informed choices.

This does not provide clarity as to what happens if the individual is NOT ELIGIBLE FOR DVR SERVICS

Contracting Prohibition

Statute: Section 511(b)(2) of the Act, as added by WIOA, prohibits a local or State educational agency (as defined in section 9101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801)) from entering into a contract or other arrangement with an entity, which holds a special wage certificate under 14(c) of the FLSA for the purpose of operating a program for a youth under which work is compensated at a subminimum wage.

HUMMMMMM WHY THE EXCLUSION????

Current Regulations: None.

Proposed Regulations: Proposed § 397.31 would prohibit a local educational agency or a State educational agency from entering into a contract with an entity that employs individuals at subminimum wage for the purpose of operating a program under which a youth with a disability is engaged in subminimum wage employment. Although section 511(b)(2) of the Act refers to youth in general, theproposed regulation is limited to youth with disabilities in order to be consistent with all other provisions of section 511 of the Act.

Reasons: This proposed section is necessary to implement new statutory requirements. In so doing, this proposed regulation is consistent with the heightened emphasis in the Act, as amended by WIOA, on ensuring that individuals with disabilities, especially youth with disabilities, are given the opportunity to train for and obtain work in competitive integrated employment.

What does contracting with Sheltered Workshop agencies have to do with helping youth to be trained for competitive work??

While some State and local educational agencies contract with employers who hold special wage certificates under FLSA, others contract with employers who pay minimum wage, to create job training and other work experiences for students with disabilities. Through these training and work experience programs, students with disabilities gain knowledge and skills that transfer into eventual jobs similar to those in which they receive their training, not only with regard to the type of duties performed, but also the wages earned. In the context of this proposed regulation, State and local educational agencies are not employers, but rather partners that facilitate entry of students with disabilities into training programs that are implemented by employers holding special wage certificates under the FLSA. We believe this statutory prohibition, which is contained in the proposed regulations, will result in fewer students with disabilities, participating in training programs at the subminimum wage level. As a result, we believe more students with disabilities, especially those with the most significant disabilities, will have the opportunity to gain work experiences in competitive integrated employment settings which, in turn, will lead to eventual employment outcomes in those settings rather than at the subminimum wage level. With regard to this proposed provision, the Secretary specifically seeks comments regarding the Department's role and jurisdiction with respect to these provisions.

Review of Documentation Process

Statute: Section 511(e)(2)(B) of the Act, as added by WIOA, permits DSUs, along with the Department of Labor, to review individual documentation held by entities holding special wage certificates under the FLSA to ensure the required documentation for individuals with disabilities, including youth with disabilities, who are employed at the subminimum wage level, is maintained. WOW Accountability Will be seen not as protecting the WORKERS but harassing the agency!!! Dept of Labor has control over FLSA HUMMMMM What does this mean down the road???

Current Regulations: None.

Proposed Regulations: Proposed § 397.50 would authorize a DSU to review individual documentation, required by this part, for all individuals with disabilities who are employed at the subminimum wage level, that is maintained by employers, who hold special wage certificates under the FSLA.

Reasons: This proposed provision is necessary to implement new statutory requirements. In this context, the DSU's role is one of review not enforcement. The Department of Labor retains enforcement authority with respect to these employers under the FLSA.

And why NO Analysis on those being EXCLUDED from these services that are integral to their lies

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This proposed regulatory action is a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

We have assessed the potential costs and benefits of this regulatory action. The potential costs associated with the proposed regulations are those resulting from statutory requirements and those we have determined as necessary for administering these programs effectively and efficiently. Elsewhere in this section under Paperwork Reduction Act of 1995, we identify and explain burdens specifically associated with information collection requirements.

In assessing the potential costs and benefits—both quantitative and qualitative—of these proposed regulations, we have determined that the benefits would justify the costs.

CUT

A. Vocational Rehabilitation Program Competitive Integrated Employment and Employment OutcomesBack to Top

The Act, as amended by WIOA, places heightened emphasis on the achievement of competitive integrated employment by individuals with disabilities, including those with the most significant disabilities.

The Act, as amended by WIOA, imposes limitations on the payment of subminimum wages by employers who hold special wage certificates under the Fair Labor Standards Act. The requirements imposed by section 511 and thus proposed in part 397, do not take effect until July 22, 2016.

Pursuant to statutory requirements contained in section 511 of the Act, as added by WIOA, we propose to create a new § 397.10 that would require the DSU, in consultation with the State educational agency, to develop a process, or utilize an existing process, that ensures individuals with disabilities, including youth with disabilities, receive documentation demonstrating completion of the various activities required by section 511. Proposed §§ 397.20 and 397.30 would establish the documentation that the DSUs and local educational agencies, as appropriate, must provide to demonstrate an individual's completion of the various activities required by section 511(a)(2) of the Act. These include completing pre-employment transition services under proposed § 361.48(a) and the determination under an application for VR services under proposed §§ 361.42 and 361.43. Proposed § 397.40 would establish the documentation that the DSUs must provide to individuals with disabilities upon the completion of certain information and career counseling-related services, as required by section 511(c) of the Act.

WHAT DOES THIS MEAN????

We have prepared an Information Collection Request (ICR) for these collections. If you want to review and comment on the ICR please follow the instructions listed under the ADDRESSES section of this notice. Please note the Office of Information and Regulatory Affairs (OMB) and the Department review all comments on an ICR that are posted at www.regulations.gov. In preparing your comments you may want to review the ICR in www.regulations.gov or in www.reginfo.gov. The comment period will run concurrently with the comment period of the NPRM. When commenting on the information collection requirements, we consider your comments on these collections of information in—

Deciding whether the collections are necessary for the proper performance of our functions, including whether the information will have practical use;

There is just so much WOW They can make a SUMMARY JUDGMENT that all of this can be ignored JUST LIKE THAT!!!!!!!!

Evaluating the accuracy of our estimate of the burden of the collections, including the validity of our methodology and assumptions;

Enhancing the quality, usefulness, and clarity of the information we collect; and

Minimizing the burden on those who must respond.

This includes exploring the use of appropriate automated, electronic, mechanical, or other technological collection techniques.

OMB is required to make a decision concerning the collections of information contained in these regulations between 30 and 60 days after publication of this document in the Federal Register. Therefore, to ensure that OMB gives your comments full consideration, it is important that OMB receives your comments by May 18, 2015. This does not affect the deadline for your comments to us on the proposed regulations.